Skip to comments.How Not To Overturn Roe v. Wade
Posted on 11/26/2002 1:06:24 PM PST by Remedy
An aside in Justice Antonin Scalias recent article, "Gods Justice and Ours" (FT, May), provides a useful and timely reminder that efforts to overrule Roe v. Wade through "personhood" litigation are doomed to failure. In the course of his article (which focuses on the morality of the death penalty), Justice Scalia writes: "My difference with Roe v. Wade is a legal rather than a moral one: I do not believe . . . that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I wouldand could in good consciencevote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter."
Several organizations, including the National Foundation for Life and the Texas Justice Foundation, have undertaken litigation that is intended to overturn Roe v. Wade and establish the legal personhood of the unborn child. The National Foundation for Life (NFFL) modestly describes its litigation strategy as the "Global Project." This strategy suffers from many analytical and methodological errors, not the least of which is the notion, central to the ongoing federal litigation in New Jersey (the Donna Santa Marie ýase now on appeal in the Third Circuit), that a woman who has been coerced into having an abortion has no legal remedy under the states wrongful death statute when, in fact, such a remedy clearly exists under current laweither a common law action for battery or, if state actors are involved, a federal civil rights action, which the Supreme Court itself approved of in Planned Parenthood v. Casey (1992). And for those women who have not @een coerced into having an abortion (which is to say virtually all women who undergo abortions), how can it be said that their rights (as opposed to their childrens rights, discussed below) have been violated? The essential shortcoming of this type of litigation, however, is that it aims at persuading the Justices of the Supreme Court of the existence of a factthat the unborn child is a developing member of the human family from the moment of conceptionwith which they already are familiar.
The unstated premise of those who have adopted this strategy is that the Justices do not understand the nature of abortion, and that if they are forced to confront the scientific and medical facts about the conception and development of the unborn child, they will be compelled to reconsider Roe v. Wade and hold that the unborn child is a constitutional person. To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken. Every member of the Court understands what an abortion is. If there was any doubt about this before, the Courts decision in Stenberg v. Carhart two years ago, striking down Nebraskas partial-birth abortion law, should have laid that doubt to rest. The majority opinions cold and clinical description of various abortion methods betrays no ignorance of the nature of abortion. The Court understands that the purpose and effect of an abortion is to kill an unborn (and, in some instances, a partially born) child. Whatever reservations some members of the Carhart majority may have about the morality of abortion in general or the partial-birth technique in particular, those reservations have not affected their collective judgment that women need abortion to be legal in order for them to be full and equal members of American society. It is that judgment, and not any misunderstanding of what happens in an abortion, that is the source of our present predicament, as even a casual perusal of the Courts opinion in Casey reaffirming Roe v. Wade would disclose.
Instead of meeting head-on the Courts rationale for adhering to the abortion liberty, the NFFL veers off in a different direction, arguing for the "personhood" of the unborn child. But by now, it should be clear that no member of the Courtpast or presentbelieves that the unborn child is a "person," as that term is used in Section 1 of the Fourteenth Amendment. Seventeen justices have sat on abortion cases since and including Roe, and not one has ever stated that the unborn child is a constitutional person. Neither then-Justice William Rehnquist nor the late Justice Byron White, both of whom dissented in Roe, took issue with the Courts holding that the unborn child is not a constitutional person. Both Justices, then and later, recognized the states authority to legislate in this area. Dissenting in Roe, Justice Rehnquist stated that "the drafters did not intend to have the Fourteenth Amendment withdraw from the states the power to legislate with respect to this matter [i.e., abortion]." Dissenting in both Roe and Doe v. Bolton, the companion case to Roe, Justice White stated that "this issue [i.e., abortion], for the most part, should be left with the people and the political processes the people have devised to govern their affairs."
No present or past Justice has ever taken the position that the unborn child is, or should be regarded as, a "person" as understood in the Fourteenth Amendment, including the late Justice White, perhaps the most eloquent critic of Roe v. Wade. And in the Carhart case, the Court refused even to consider Nebraskas argument that a partially born child is a constitutional person. That question was rejected for review without dissent. So much for the naive notion of "forcing" the Court to take on the personhood issue.
But there is more than silence to indicate the Justices views. Dissenting in Casey, Justice Antonin Scalia stated, "The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so." This statement, in an opinion that Chief Justice Rehnquist, Justice White, and Justice Clarence Thomas joined, quite obviously is not compatible with a recognition of personhood. And in dissenting from the Courts decision to strike down the Nebraska partial-birth abortion ban, Chief Justice Rehnquist and Justices Scalia and Thomas once more urged that the issue of abortion be returned to the states.
In his brief dissent in Carhart, Justice Scalia stated that "the Court should return this matter to the peoplewhere the Constitution, by its silence on the subject, left itand let them decide, state by state, whether this practice should be allowed." Justice Thomas, writing for himself, Chief Justice Rehnquist, and Justice Scalia, began his lengthy dissent by stating: "Nothing in our Federal Constitution deprives the people of this country of the right to determine whether the consequences of abortion to the fetus and to society outweigh the burden of an unwanted pregnancy on the mother."
Entirely apart from the issue of personhood, there is little basis for believing that any of the Justices would accept the argument that the Supreme Court (or any court) is qualified to state when human life begins. Dissenting in Casey, Justice Scalia, joined by the Chief Justice and Justices White and Thomas, wrote that the question of when human life begins is not "a legal matter" capable of resolution by a court, but, instead, is "a value judgment" that may be made only by the political branches of government. In his concurring opinion in Ohio v. Akron Center for Reproductive Health (1990), Justice Scalia said that the determination of when human life begins is a question not capable of judicial resolution and instead must be left to the political process where compromise and accommodation of divergent views is possible. This themethat the resolution of the abortion question should be left to the political branches of governmenthas been a leitmotif of Justice Scalias abortion opinions.
The immediate objective of the NFFLs strategy is to compel New Jersey and a handful of other states to recognize wrongful death actions for unborn children where such actions are not currently allowed. But this objective, to the extent that it is intended to challenge Roe, is also misdirected. Nothing in Roe, properly understood, forbids New Jersey or any other state from imposing civil liability and/or criminal sanctions on anyone who causes injury to or the death of an unborn child (outside the context of abortion). Indeed, many more states recognize such civil actions (and punish such crimes) now than before Roe was decided. One might go further and argue that the Constitution should forbid one person (the pregnant woman) from being able to consent to the injury or death of another person (her unborn child), but that assumes a state of affairs in which both persons are entitled to the protection of the Constitution. For the reasons set forth above, no federal court is going to hold that New Jersey (or any other state) must extend its wrongful death statute to unborn children on either equal protection or due process grounds, regardless of whether their death occurs as a result of abortion or otherwise.
But if the NFFL strategy is pursued, several federal courts will hold, as Roe did and as the Third Circuit already has in an earlier failed attempt of the "Global Project," Alexander v. Whitman (1997), that the unborn child is not a constitutional person ("the short answer to plaintiffs argument is that the issue is not whether the unborn are human beings, but whether the unborn are constitutional persons"). These decisions, none of which has been (or is likely to be) reviewed by the Supreme Court, simply reinforce the positivist legal principle that having the attributes of humanity is not enough to entitle one to the protection of the law. That result, in my judgment, would be most regrettable.
Roe may be (and we must hope and pray will be) overturned some day, either by a Court decision returning the issue to the states or by a constitutional amendment. But most assuredly it will not come about through an effort like the NFFLs "Global Project," which simply diverts scarce pro-life resources into a quixotic venture destined to fail. Justice Scalias recent restatement of his view that the Constitution does not speak to the issue of abortion at all should serve as a much needed wake-up call to those who think otherwise.
Paul Benjamin Linton is an attorney who specializes in pro-life litigation and legislative consulting, and has served as General Counsel of Americans United for Life. His article "Same-Sex Marriage Under State Equal Rights Amendments" appears in the current issue of the St. Louis University Law Journal.
I also disagree with the "seamless garment" or "culture of death" argument, which links the death penalty with approval of abortion. Anyone who thinks that the elimination of capital punishment will give the abortion-prone woman second thoughts has to be delusional. The "pro-choice" American believes as much as anyone else that life-out-of-the-womb is sacred; sparing the life of a double axe-murderer is unnecessary to drive home that point. Indeed, in my experience the abortion-rights advocate, usually a liberal, is more likely to abhor the death penalty than the abortion opponent, usually a conservative. What the "pro-choice" American does not believe is that a human fetus is as fully a human life as Uncle Charlie. Eliminating the death penalty does not remotely address that issue.
The foundation for Roe v. Wade was never valid. In fact, few in the legal community deny that the decision is based on flawed legal reasoning and an obsolete state of knowledge. Even Roe's supporters avoid discussing the merits of its legal reasoning. Furthermore, what was once uncertainty and disagreement about when human life begins is now indisputable fact backed by a consensus of physicians and scientists.
The Illogic of the Casey stare decisis Analysis The opinion of the majority of the court in Casey stated that the court need not review the legal questions concerning abortion as if they were before the court for the first time. Two of the members of the court who had previously voted to overturn Roe v. Wade because it did not have a legitimate legal basis joined in this majority opinion saying that they need not state what the correct legal analysis would be if the issues were presented to the court for the first time. These judges justified reaffirming Roe based upon a legal doctrine called stare decisis, a doctrine which holds that prior court decisions, as a general proposition, should be followed in later cases. The Supreme Court used three illogical assumptions to justify its application of stare decisis to the Casey suit. This section explains the illogic of Casey.
The opinion of the majority of the court in Casey stated that the court need not review the legal questions concerning abortion as if they were before the court for the first time. Two of the members of the court who had previously voted to overturn Roe v. Wade because it did not have a legitimate legal basis joined in this majority opinion saying that they need not state what the correct legal analysis would be if the issues were presented to the court for the first time. These judges justified reaffirming Roe based upon a legal doctrine called stare decisis, a doctrine which holds that prior court decisions, as a general proposition, should be followed in later cases. The Supreme Court used three illogical assumptions to justify its application of stare decisis to the Casey suit. This section explains the illogic of Casey.
The Casey court said that it had to re-affirm Roe v. Wade because the American people have come to rely upon abortion. In other words, whether Roe was correctly decided or not the Court would give the people what the Court claimed the people had come to rely upon.
In 1973, the people of virtually every state banned and prohibited abortion. The people of the states believed it was morally reprehensible and legally unjustifiable. Then the Supreme Court, in Roe v. Wade took the power away from the people to ban abortion, saying that the doctor's act of killing a child was protected by the Constitution and that the people's action prohibiting it was beyond its power.
In 1992, in the Casey decision the Supreme Court effectively said that the Roe decision, which said the people did not have the power to ban abortion, may have been incorrectly decided if reviewed by the Casey court for the first time. However, the Court said that it was exonerated from its duty to correct its own mistake because the Court claimed that the people had come to rely on abortion. For that reason, the Casey court said that the court would continue to take the power away from the people. Thus, the court which forced the people of the states to legalize abortion now blamed the people for perpetuation of the court's error.
Donna Santa Marie, Jane Jones, and Mary Doe all lost their children at the hands of three different abortion doctors. One doctor terminated the life of Donna's child in an involuntary abortion procedure. The abortions performed on Jane and Mary were done without a valid, informed consent.
All three women filed unrelated medical malpractice cases against the respective doctor who performed the abortion. In the case filed by Jane, the abortion doctor and his lawyers filed a motion to dismiss the complaint on the grounds that New Jersey created a fiction that the baby never existed, and therefore Jane did not sustain the loss of her child. The abortion doctor argued that such a fiction was consistent with and was authorized by Roe v. Wade. Jane's lawyers filed papers in opposition to the motion to dismiss, which included affidavits and reports from an international team of scientific and medical experts who could prove that the child is a complete, separate, unique human being throughout gestation. Her lawyers also filed briefs which argued how New Jersey's law violated Jane's own equal protection rights as well as the rights of her baby. Jane and her lawyers also filed a motion to stay the state court case in order to allow the federal constitutional issues to be litigated in the federal court. The state court judge signed a consent order staying the state court action and giving Jane 90 days to file the federal suit. In the same order, the state court judge ordered the litigants not to divulge the identity of Jane Jones, but to allow her to move forward under a fictitious name to protect her privacy.
Jane filed the federal complaint within the 90 days allotted by the state court judge. At the time she filed the complaint, Donna Santa Marie and Mary Doe, who both had pending state court cases against their doctors, in different counties, joined Jane's suit and collectively their cases are known as Donna Santa Marie et al v. Whitman et al. In addition to these three women, two other women who have active obstetrical medical practices joined the lawsuit as party plaintiffs. In this section, you will find the history of the proceedings in the federal case and you can download copies of the pleadings, briefs, and other documents as they become part of the public record.
The Legal Team - Santa Marie, et. al. v. Whitman, et. al. The Honorable Thomas F. Shebell, Jr., P.J.A.D., Retired was a Presiding Judge, Appellate Division, Superior Court of New Jersey where he served from 1983 to 1998, and currently serves of counsel to the firm of Shebell & Shebell, specializing in arbitration, mediation and federal litigation. Robert P. George, Ph.D., J.D. acts as a legal advisor to the National Foundation for Life and counsels on its projects. He is a Tenured Professor, Department of Politics, at Princeton University, and a recent commissioner on the United States Commission on Civil Rights, appointed by President Bush in 1993. His other academic positions include that of visiting Fellow in Law at Oxford University and visiting Professor at Georgetown University. Harold J. Cassidy, J.D. is the attorney of record for Donna Santa Marie as well as the two other plaintiffs in the New Jersey state court proceedings. These clients came to him in his private practice in New Jersey seeking to redress their grievance against the abortion doctors who terminated the lives of their children. As counsel for Donna he has initiated the formulation of the federal action. A partner in the New Jersey law firm of Cassidy, Messina & Laffey, he has been designated by the New Jersey Supreme Court as a Certified Civil Trial Attorney.
The Honorable Thomas F. Shebell, Jr., P.J.A.D., Retired was a Presiding Judge, Appellate Division, Superior Court of New Jersey where he served from 1983 to 1998, and currently serves of counsel to the firm of Shebell & Shebell, specializing in arbitration, mediation and federal litigation.
Robert P. George, Ph.D., J.D. acts as a legal advisor to the National Foundation for Life and counsels on its projects. He is a Tenured Professor, Department of Politics, at Princeton University, and a recent commissioner on the United States Commission on Civil Rights, appointed by President Bush in 1993. His other academic positions include that of visiting Fellow in Law at Oxford University and visiting Professor at Georgetown University.
Harold J. Cassidy, J.D. is the attorney of record for Donna Santa Marie as well as the two other plaintiffs in the New Jersey state court proceedings. These clients came to him in his private practice in New Jersey seeking to redress their grievance against the abortion doctors who terminated the lives of their children. As counsel for Donna he has initiated the formulation of the federal action.
A partner in the New Jersey law firm of Cassidy, Messina & Laffey, he has been designated by the New Jersey Supreme Court as a Certified Civil Trial Attorney.
Once the facts are properly understood it is clear that the position traditionally referred to as pro-life - the protection of the child's life throughout pregnancy - is the only true pro-choice position because a mother's natural, inalienable and constitutional right to her relationship with her child can only be preserved if decisions surrounding the waiver of those rights are knowing, voluntary and informed in the fullest sense so that there is a full appreciation of the rights being surrendered.
The mother of the child she carries possesses a fundamental right to maintain her relationship with her child. Abortion was legalized based upon the assumption that the child was not in existence. Based upon that false assumption of fact, abortion was seen as nothing other than a way to prevent a human being from coming into existence. The abortion was thus intended to protect interests that a woman has in planning when she would have a child.
This false assumption has caused great harm to both the mother's rights and the mother's health.
Because legalized abortion totally ignores that the mother has a legal, moral, and human interest in the life of her existing child and the Constitutionally protected relationship with that child, it has completely denied any meaningful choice in determining whether or not a woman should maintain her rights or whether she should waive her rights to her relationship with her child.
I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child-one cannot even accurately say an entirely unborn human child-proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)-is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.
* * *
In my dissent in Casey, I wrote that the "undue burden" test made law by the joint opinion created a standard that was "as doubtful in application as it is unprincipled in origin," Casey, 505 U.S., at 985; "hopelessly unworkable in practice," id., at 986; "ultimately standardless," id., at 987. Today's decision is the proof. As long as we are debating this issue of necessity for a health-of-the-mother exception on the basis of Casey, it is really quite impossible for us dissenters to contend that the majority is wrong on the law-any more than it could be said that one is wrong in law to support or oppose the death penalty, or to support or oppose mandatory minimum sentences. The most that we can honestly say is that we disagree with the majority on their policy-judgment-couched-as-law. And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence. Casey must be overruled.
While I am in an I-told-you-so mood, I must recall my bemusement, in Casey, at the joint opinion's expressed belief that Roe v. Wade had "call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," Casey, 505 U.S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that "Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since"; and that, "by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court's new majority decrees." Id., at 995-996. Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism-as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O'Connor's concurrence, "[t]he issue of abortion is one of the most contentious and controversial in contemporary American society," ante, at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.
To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken. Every member of the Court understands what an abortion is. If there was any doubt about this before, the Courts decision in Stenberg v. Carhart two years ago, striking down Nebraskas partial-birth abortion law, should have laid that doubt to rest. The majority opinions cold and clinical description of various abortion methods betrays no ignorance of the nature of abortion. The Court understands that the purpose and effect of an abortion is to kill an unborn (and, in some instances, a partially born) child.
To speak in spiritual terms, the critics assume that the problem lies in the intellect rather than the will. That premise is mistaken. Every member of the Court understands what an abortion is. If there was any doubt about this before, the Courts decision in Stenberg v. Carhart two years ago, striking down Nebraskas partial-birth abortion law, should have laid that doubt to rest. The majority opinions cold and clinical description of various abortion methods betrays no ignorance of the nature of abortion. The Court understands that the purpose and effect of an abortion is to kill an unborn (and, in some instances, a partially born) child.
Yale Law Professor, Arthur Leff, expressed the bewilderment of an agnostic culture that yearns for enduring values in a brilliant lecture delivered at Duke University in 1979, a few years before his untimely death from cancer. The published lecture - titled, "Unspeakable Ethics, Unnatural Law" - is frequently quoted in law review articles, but it is little known outside the world of legal scholarship. It happens to be one of the best statements of the modernist impasse that I know. As Leff put it,
I want to believe - and so do you - in a complete, transcendent, and immanent set of propositions about right and wrong, findable rules that authoritatively and unambiguously direct us how to live righteously. I also want to believe - and so do you - in no such thing, but rather that we are wholly free, not only to choose for ourselves, individually and as a species, what we ought to be. What we want, Heaven help us, is simultaneously to be perfectly ruled and perfectly free, that is, at the same time to discover the right and the good to create it.
The heart of the problem, according to Leff, is that any normative statement implies the existence of an authoritative evaluator. But with God out of the picture, every human becomes a godlet - with as much authority to set standards as any other godlet or combination of godlets. For example, if a human moralists says "Thou shalt not commit adultery", he invites the formal intellectual equivalent of what is known in barrooms and schoolyards as 'the grand sez who?' Persons who want to commit adultery, or who sympathise with those who do, can offer the crushing rejoinder: What gives you the authority to prescribe what is good for me?
Arthur Leff had a deeper understanding of what the death of God ultimately means for man. He saw modern intellectual history as a long, losing war against the nihilism implicit in modernism's rejection of the unevaluated evaluator who is the only conceivable source for ultimate premises. Leff rejected the nihilism implicit in modernism, but he also rejected the supernaturalism that he had identified as the only escape from nihilism. Here is how he concluded his 1979 lecture:
All I can say is this: it looks as if we are all we have. Given what we know about ourselves, and each other, this is an extraordinary, unappetising prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cane and Abel. Neither reason, nor love, nor even terror, seems to have worked and made us "good", and, worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us could law be unnatural, and therefore unchallengeable. As things stand now, everything is up for grabs.
Those who stood up and died resisting Hitler, Stalin, Amin and Pol Pot - and General Custer too - have earned salvation.
But by now, it should be clear that no member of the Courtpast or presentbelieves that the unborn child is a "person," as that term is used in Section 1 of the Fourteenth Amendment. On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823) The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition. - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70. "[W]e have no government armed with power capable of contending with human passions unbridled by religion morality and. . . . Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams, The Works of John Adams, Second President of the United States Roe may be (and we must hope and pray will be) overturned some day, either by a Court decision returning the issue to the states or by a constitutional amendment.
But by now, it should be clear that no member of the Courtpast or presentbelieves that the unborn child is a "person," as that term is used in Section 1 of the Fourteenth Amendment.
On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)
The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition. - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.
"[W]e have no government armed with power capable of contending with human passions unbridled by religion morality and. . . . Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams, The Works of John Adams, Second President of the United States
Roe may be (and we must hope and pray will be) overturned some day, either by a Court decision returning the issue to the states or by a constitutional amendment.
IMPEACHING FEDERAL JUDGES: A COVENANTAL AND CONSTITUTIONAL RESPONSE TO JUDICIAL TYRANNY Impeaching Federal Judges: A Covenantal and Constitutional Response to Judicial Tyranny, was cited twenty-four times at the House Impeachment Hearings in 1999.
When President Bush nominated 11 individuals to the U.S. Court of Appeals on May 9, 2001, he explained "the standards by which I will choose all federal judges." He said:
"Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase
James Madison, the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference."
If judicial philosophy the way a judge achieves results is the most important issue in judicial selection, judicial ideology the results a judge achieves is the most tempting. In this ends-justify-the-means culture, what we want is more immediately appealing than how we get it. Focusing on the "how" rather than the "what," after all, suggests that we might not get what we want if we try to get it in the wrong way.
That is why we must always insist that the issue is liberty. Hamilton wrote, quoting Montesquieu, that "there is no liberty if the power of judging be not separated from the legislative and executive power." The Supreme Court has recognized that this separation of powers was "adopted by the Framers to ensure the protection of our fundamental liberties."5 And now President Bush has pledged to appoint judges who know the difference between interpreting and making law.
Some conservatives seem less willing to stick to these principles when the opportunity arises for favorable judicial appointments. When the potential exists, they switch from emphasizing liberty and "how" to politics and "what." Needless to say, this is not only wrong as a matter of fundamental principle, but it damages credibility and, ultimately, is a losing political strategy. The most productive approach is to consistently focus attention on President Bushs judicial selection standard.
Here's the question, if Roe Vs Wade is overturned, should it remain a states rights decision, or should a federal law banning the practise immediatley be sought for by congress?
Here's the question, if
Roe Vs WadeDred Scott is overturned, should it remain a states rights decision, or should a federal law banning the practise immediatley be sought for by congress?
The reasoning in Dred Scott and Roe v. Wade is nearly identical. In both cases the Court stripped all rights from a class of human beings and reduced them to nothing more than the property of others. Compare the arguments the Court used to justify slavery and abortion. Clearly, in the Court's eyes, unborn children are now the same "beings of an inferior order" that the justices considered Blacks to be over a century ago.
Thus, our Founding Fathers, in the Declaration, acknowledged the existence of the Laws of Nature and the Laws of Nature's God and the applicability of those "laws" to the new nation. They also concluded that "a decent respect to the opinions of mankind" required that they should declare the "causes" which led to the separation from Great Britain.
The way and manner in which our Founding Fathers set forth those "causes" is most interesting. First, they set forth some "truths" which they classified as being "self-evident." This was done by the following language:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.
Thus, the "purpose" of any government, according to the Declaration, is to "secure" the "unalienable Rights" with which " all men" are endowed by their Creator.
It is clear from the language of the Declaration that the Form of Government of any government should consist of these two parts, (1) a foundation of principles (i.e., the source or basis of unalienable rights) and (2) the organization of its powers.
Since the Constitution is designed to organize the powers of the government, it makes no mention of "unalienable Rights" nor does it make any mention of the transcendent truths or principles from which those unalienable rights descend, rest or depend. Neither does the Constitution refer to "Nature's God," to the "Laws of Nature's God" or to the Creator. Apart from the Declaration there is simply no basis in the Organic Laws of our Nation for officeholders to acknowledge that there are such things as "unalienable Rights."
If humans are possessed with unalienable individual "rights"-individual "liberty" -then the government must acknowledge and honor those " unalienable Rights." This constitutes a limitation upon the "power" or the "authority" of the government. It is just that simple. If the people in America are possessed with individual unalienable "rights" which are to be acknowledged and honored by the government, then the government does not have the "power" or the "authority" to destroy those "rights." Its power is limited in that regard. In fact, the government is obligated to protect or "secure" those individual unalienable "rights."
The question is then raised as to whether our Founding Fathers intended for the governmental form which they established to acknowledge and honor individual unalienable "rights" or whether they intended to establish a governmental form with totalitarian powers in the government. With this question in mind, we look at the documents prepared and approved by our Founding Fathers which (1) established our nation and set forth the foundation for its government, and (2) organized the powers of this government.
If there is no legal connection or relationship between the "Constitution" and the Declaration, then the officeholders have only the Constitution to look to for their guidance and instruction. Since the Constitution contains no provisions referring to unalienable rights or to the source of those unalienable rights, or transcendent, unchangeable and unchanging principles, there is simply no limitation on the powers of the constitutionally oriented government. Thus, if the officeholders are obligated to look only to the Constitution as a freestanding document in the performance of their official duties and ignore the Constitution connection with or relationship to the Declaration, then America has a government with totalitarian powers which has no obligation whatsoever to even acknowledge, much less "secure," that Americans are endowed with unalienable rights, including the right to Life, Liberty and the Pursuit of Happiness.
On the other hand, if there is a legal connection or relationship between the Declaration and the Constitution, then all officeholders are obligated, under their oath or affirmation, to interpret the Constitution in accordance with that legal connection or relationship. Since the Declaration refers to "self-evident" truths (transcendent truths or principles) and "unalienable Rights" the Constitution is to be interpreted in the light of the existence of those self-evident truths and "unalienable Rights."
Well, there are other authorities for such rights. Many if not most 'rights' can be found enshrined in the state constitutions, as well as (and more anciently) the Common Law of England which, the state constitutions incorporate.
Most of the rights secured by the Constitution of the United States in the Bill of Right were first enshrined in English Common Law and were an enumeration or incorporation of these rights into our Constitution. This is so true that when Louis Brandeis and Sam Warren, Boston lawyers, wrote their ground-breaking study of the Right to Privacy in 1890, they drew almost exclusively upon principles of English Common Law.
English Common Law contains the precedents that became the very language of our Constitution, and it is from this well of principles, precedents and declarations that our legal system draws its precedents and principles, as well as the very language in which these precedents and principles are expressed.
The Bill of Rights was, in fact, 'the incorporation and absorption of rights already established in English Common Law.' Because of the work of Brandeis and Warren, privacy was recognized as a constitutional right by the Supreme Court in Griswold v. Connecticut and Roe v. Wade, as one of the "non-enumerated" rights protected and guaranteed by the 9th Amendment of the Constitution.
The legal question is: Do the rights in the Bill of Rights, and the immunities protected by the 14th Amendment, apply to the unborn? In other words, is there in English Common Law any declaration of the rights of the unborn which would warrant incorporation in the 14th Amendment? The answer is "Yes", and there is a twofold basis in Common Law.
The constitutional issues raised by Roe v. Wade have never had, a public airing and the public debate on the subject has turned on philosophical rather than legal issues. This study attempts to bring into focus some of the constitutional issues involved, but by no means exhausts them. it is merely an overview of a totally new development in constitutional law, a development that could be labeled embryonic law.
Constitutional issues in the United States arise through litigation, through actual disputes brought into the courts. These issues are also resolved by litigation, by further action in the courts until the constitutional issues are clarified. This has been true in the past and it will be true of any national dispute that arises in the future.
What happens in litigation in constitutional matters is that principles imbedded in the Constitution, but not explicit in the text of the Constitution, emerge by the litigation process, and these principles become part of the constitutional inheritance of the nation and themselves become precedents for the resolving of future disputes.
The principles that have emerged in the past through litigation are numerous, but I will mention ten, which have become part of the fabric of constitutional law in the United States. These principles, it must be insisted, are implicit in the Constitution itself, and only emerged through litigation. Litigation is the process by which the Constitution is applied to new times and circumstances, resolving new issues as they arise.
Conclusion from Blackmun: "Under the Right to Privacy, guaranteed by the Fourteenth Amendment, a woman has a right to terminate the life of the unborn. The unborn have no human status and therefore no legal status that the law has to respect."
Contrary Conclusion: "The unborn is a true human being in utero and is entitled to all the rights, privileges and immunities guaranteed by the Bill of Rights to every citizen of the United States."
Not everything we do in private is a purely personal matter.
I'm not allowed to sit in privacy and steal money from others through "hacking." I'm not allowed to sit in privacy and shoot stray cats. We are prevented from doing things like chopping down certain trees, in privacy, on our own land.
The government intrudes to save any number of species, as long as they aren't unborn homo sapiens.
Here's the question, if Roe Vs Wade is overturned, should it remain a states rights decision, or should a federal law banning the practise immediatley be sought for by congress? 5 posted by Sonny M Perhaps, here is one of the keys to unlock this gordian knot, law addressing abortion is a states' rights issue.
Is it so outlandish to say that the Roe decision, which vaguely addressed a state's 'compelling interest' can be brought to the front ... as a compelling interest of the state where life support is the issue? If abortion law were referred back to the states, any state so writing such laws could address limitation which would direct the judicial judgement toward life support in a gradation fashion, as in making illicit any abortion after the twelfth week from last ovulation of the female, except where a continuing life support would endanger the life of the one giving life support. The rape and incest clauses would fall under the first three month 'window' of unadopted compelling interest of the state, but all terminations would be the purview of the states' right as a compelling interest for the one receiving life support.
My difference with Roe v. Wade is a legal rather than a moral one: I do not believe . . . that the Constitution contains a right to abortion. And if a state were to permit abortion on demand, I wouldand could in good consciencevote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter. . . . The states may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so. . . . the Court should return this matter to the peoplewhere the Constitution, by its silence on the subject, left itand let them decide, state by state, whether this practice should be allowed.
This is it! This is what I have been saying for years. The best argument against what the SCOTUS has done in Roe, etc., is to be found in the TENTH Amendment, not the Fourteenth. The SCOTUS had no constitutional power to take away the States' "right to choose" to have laws against abortion. To be sure, abortion is also a moral question, very much so. But from a constitutional perspective, this is the best road to go.
I have always thought it was one of the most important rights.
The Tenth Amendment to the Constitution says that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
You could also use the Ninth Amendment.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
If you read the Court decision in Roe v Wade the Justices made no mention of either the Ninth or the Tenth Amendments.
Haven't had time to read the discussion on the thread, too much chatter, and am holding a newborn at the moment.
Ever wonder why the pro-abortion Left is so upset by polygamy? What happens if JUST ONE polygamist woman claims her "right to choose" ???
Ever know of any polygamists who weren't pro-life?
Overturning Supreme Court Decisions with Constitutional Amendments
The Supreme Court's power of judicial review allows the court the power of interpreting the Constitution and determining whether any act of the Congress, the executive, or the state governments is in violation of the Constitution. Four of the twenty-seven amendments to the Constitution have overturned Supreme Court decisions. Two other proposed but unratified amendments also sought to overturn decisions of the Supreme Court.
Proposing an amendment to the Constitution of the United States with respect to the right to life. (Introduced in House)
HJ 20 IH
H. J. RES. 20
Proposing an amendment to the Constitution of the United States with respect to the right to life.
IN THE HOUSE OF REPRESENTATIVES
Mr. OBERSTAR (for himself, Mr. AKIN, Mr. ARMEY, Mr. BAKER, Mr. BARCIA, Mr. BARTLETT of Maryland, Mr. DEMINT, Mr. GREEN of Wisconsin, Ms. HART, Mr. HAYES, Mr. HULSHOF, Mr. LIPINSKI, Mr. LUCAS of Kentucky, Mr. PICKERING, Mr. SHIMKUS, Mr. SHOWS, Mr. TANCREDO, and Mr. TERRY) introduced the following joint resolution; which was referred to the Committee on the Judiciary
Proposing an amendment to the Constitution of the United States with respect to the right to life.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein),That the following article is proposed as an amendment to the Constitution of the United States, to be valid only if ratified by the legislatures of three-fourths of the several States within seven years after the date of final passage of this joint resolution:
`SECTION 1. With respect to the right to life, the word `person' as used in this article and in the fifth and fourteenth articles of amendment to the Constitution of the United States applies to all human beings irrespective of age, health, function, or condition of dependency, including their unborn offspring at every stage of their biological development.
`SECTION 2. No unborn person shall be deprived of life by any person: Provided, however, That nothing in this article shall prohibit a law permitting only those medical procedures required to prevent the death of the mother.
`SECTION 3. The Congress and the several States shall have power to enforce this article by appropriate legislation.'.
The EagleCross Alliance is making preparations to send this legislative proposal to all pro-life members of the House and Senate. We will include a list of other individuals, churches and organizations that support this proposal, and we would like to invite everyone to add their name to the list.
THE CONSTITUTIONAL RIGHT TO LIFE ACT OF 2001
THE CONSTITUTIONAL RIGHT TO LIFE ACT OF 2001
To protect the right to life of each born and preborn human person in existence at fertilization.
January 21, 2001
The EagleCross Alliance and other individuals, churches and organizations (Attachment 1) propose the following bill to be introduced in the Congress
A BILL Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE
To protect the right to life of each born and preborn human person in existence at fertilization.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `The Constitutional Right to Life Act of 2001'. SEC. 2. FINDINGS.
SEC. 2. FINDINGS.
The Congress finds that-
(1) we, as a Nation, have declared that the unalienable right to life endowed by Our Creator is guaranteed by our Constitution for each human person;
(2) the Fourteenth Amendment to the Constitution states that no State shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws;
(3) the Fifth Amendment to the Constitution states that no person shall be deprived of life, liberty, or property, without due process of law;
(4) a human father and mother beget a human offspring when the father's sperm fertilizes the mother's ovum, and the life of each preborn human person begins at fertilization;
(5) there is no justification for any Federal, State, or private action intentionally to kill an innocent born or preborn human person, and that Federal, State, and private action must assure equal care and protection for the right to life of both a pregnant mother and her preborn child in existence at fertilization;
(6) Americans and our society suffer from the evils of killing even one innocent born or preborn human person, and each year suffer the torture and slaughter of an estimated 1,500,000 preborn persons;
(7) the violence of intentionally killing a preborn human person has provoked more violence, carnage, and conflict reaching into homes, schools, churches, workplaces and lives of Americans;
(8) the sanctioning of abortion in America sends a message to our nation's youth that human life is not sacred, and this message is largely to blame for the recent outbreaks of casual violence and killings committed by children;
(9) the Supreme Court has no legislative authority, but can only render an opinion, and that opinion does not undermine the laws of God or even the Constitution of the United States;
(10) the Supreme Court, in Roe v. Wade (410 U.S. 113 at 159), stated: `We need not resolve the difficult question of when life begins . . . the judiciary at this point in the development of man's knowledge, is not in a position to speculate as to the answer. . .';
(11) the Supreme Court, in Roe v. Wade (410 U.S. 113 at 156-157), stated: `If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life is then guaranteed specifically by the [Fourteenth] Amendment. . .';
(12) the Supreme Court, in Roe v. Wade stated that the privacy right is not absolute, and stated (410 U.S. 113, at 159) that: `The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus. . . . The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.';
(13) Roe v. Wade is not a law, it is a court decision. Since it was rendered by a court (in this case the Supreme Court) and not the Congress, it can not be a law at all, even less the "law of the land." It is a court decision that, at most, is only binding on the parties of that single court case. SEC. 3. CONSTITUTIONAL RIGHT TO LIFE
SEC. 3. CONSTITUTIONAL RIGHT TO LIFE.
Upon the basis of these findings and in the exercise of duty, authority, and powers of the Congress, including its power under Article I, Section 8, to make necessary and proper laws, and including its power under section 5 of the 14th article of amendment to the Constitution of the United States, the Congress hereby declares that the right to life guaranteed by the Constitution is vested in each human being at fertilization.
Pro-Life Principles II: The Right-To-Life Amendment
Timothy D. Terrell
July 30, 2002
The framers of our federal government understood (more clearly than we) the sinful nature of man and the importance of keeping rulers accountable for their actions. No one person, or legislative body, was entrusted with unconstrained power. At the federal level, the framers were particularly wary of the dangers of consolidating too much power in a remote, centralizing authority. Therefore, the republic was originally set up with a relatively decentralized form of government. The plain reading of the Constitution and the Bill of Rights suggests that the roles of the federal government were few and carefully limited. Essentially, the federal government was only to perform those functions that the states had struggled to perform on their own. Most powers remained with the states, and in the nation's first few decades, the state government would have been much more important to the ordinary citizen than the federal government. Today, of course, state governments have been reduced to something like regional administrative offices.
There is no law against murder in the Constitution-that is not the purpose of that document, or even of the federal government. The Constitution of the United States leaves criminal law to the states, and was never intended to make all crimes into federal issues. Any prohibition against abortion ought to be a state concern, just as prohibitions against any form of murder are state concerns. Pro-lifers who want to use a federal instead of a state route to ending abortion are undermining the intent of the original Constitution.
Some might protest that it is necessary to use whatever political means are necessary to end abortion, even if that means making use of governmental powers that we would not advocate in other circumstances. While the awfulness of abortion may seem to dictate exceptional measures, we forget that unleashed civil governments have perpetrated worse atrocities. Today most Americans find it hard to believe that the U.S. government is capable of genocide. However, when we give up the legal principles that limit that government, we leave the American civilization vulnerable to a gradual erosion of freedoms that could well culminate in genocide. Lesser attacks on our freedoms have appeared, and will certainly continue. What would Christians say if a "children's rights" amendment were proposed, forbidding corporal punishment, requiring federal monitoring of home schooling families, and allowing children to sue their parents for violating their privacy or not buying them Chocolate Frosted Sugar Bombs? Many of us would vigorously contest such a move. Some would argue, quite rightly, that such ridiculousness should be confined to ridiculous states that want more illiteracy and school shootings, and not imposed upon the rest of us. How can we make such a decentralist argument if we have ignored decentralist arguments made by the opponents of a right-to-life amendment?
In the U.S., we have seen such massive centralization in the last 140 years or so that it might seem an absurd waste of effort to try to regain so much lost ground now. Why not admit to our de facto federalization and form our pro-life strategy accordingly? The hazards in such pragmatism are extreme. Throwing out key principles that constrain the state to get a temporary victory over abortion means those principles will not be there when those constraints are needed to prevent other horrors. It is true that the youngest person reading this may not live to see every state legally regard abortion as murder, much less see the kind of constitutionality that we hope for. Yet the benefits of a principled adherence to a biblically limited form of government are enormous. It is worth spending centuries to regain them.
Lost in most of the Roe and Doe decisions is the object of abortion, the preborn child. While the Court refers to a pregnant woman as a "mother," it refers to the baby in the womb as "the developing young" or "potential life."
In addressing the argument that the preborn child is a "person" deserving of protection under the Fourteenth Amendment's due-process clause (which says no state shall "deprive any person of life, liberty, or property, without due process of law"), the Court simply glosses over the scientific evidence of the preborn baby's humanity and writes him or her off as a Constitutional non-person.
Justice Blackmun drew this conclusion from three points. First, the Constitution does not define the word "person." Second, he said that the word "person," as used in the Constitution, in nearly all instances, "has application only postnatally." Finally, he opined that "throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today."
This final justification is interesting. One wonders if Justice Blackmun would consider slaves "persons," given that the legal sale of human beings was also "far freer" throughout most of the 19th century than it is today.
Nevertheless, the personhood of the preborn, which Justice Blackmun admitted would, if established, guarantee Constitutional protection for children in the womb, was rejected.
Once it dismissed the biological fact of the preborn's personhood, the Court then had to decide whether a state could decide on its own to protect preborn babies, even if the U.S. Constitution, as interpreted by the Court, wouldn't.
The state of Texas, whose law was challenged in Roe, argued that life begins at conception and that, therefore, the state had a compelling interest in protecting that life.
It is here that Justice Blackmun wrote perhaps the most infamous line from Roe: "We need not resolve the difficult question of when life begins." Blackmun declared that since "medicine, philosophy, and theology are unable to arrive at any consensus" as to when a human comes into existence, the Court would not speculate.
Casting aside the curious implication that the Supreme Court, as then constituted, would even look to theology to reach a decision, one is immediately reminded here of the California Medical Association. It said less than three years before Roe and Doe:
In defiance of the long-held Western ethic of intrinsic and equal value for every human life regardless of its stage, condition or status, abortion is becoming accepted by society as moral, right and even necessary. It is worth noting that this shift in public attitude has affected the churches, the laws and the public policy rather than the reverse. . . . The result has been a curious avoidance of the scientific fact, which everyone really knows, that human life begins at conception and is continuous whether intra- or extra-uterine until death.
Since the Court held that "when life begins" is an open question, Texas's "theory of life" could not override the Constitutional rights of a woman to have an abortion. In other words, the state could not outlaw abortion based upon its "interest" in preborn babies because its "interest" was held to be unprovable, much less "compelling."
What is the Human Life Amendment?
It is a proposed amendment to the United States Constitution that states, "The paramount right to life is vested in each human being from the moment of fertilization without regard to age, health or condition of dependency."
What does this mean?
Basically, it means that every human being possesses the right to life, regardless of whether he or she is an embryo, fetus, infant, adolescent, adult or senior citizen, whether he or she is in good or bad health, and whether he or she needs mechanical or other assistance to survive.
What does the "right to life" mean?
The "right to life" means simply the right to remain alive. It is the most important right because without it there can be no others.
What does "vested" mean?
It literally means "fixed" or "established." In the context of the Human Life Amendment, it means that each person's right to life is established at the time each person comes into existence and remains with him or her until death.
From where does the "right to life" come?
The Declaration of Independence answers this very clearly, stating that it is a "self-evident" truth that all people "are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The right to life, then, comes from our Creator, God.
Don't our rights come from government?
Some rights do come from government-for instance, Americans would not have the right to a jury trial in criminal cases if people, through the government, had not created it. The right to life, however, is not one of these rights. Each person has a right to live that is independent of any government.
If each person already has a right to life, why is the Human Life Amendment necessary?
It is necessary because the U.S. government does not recognize each human being's right to life. The Human Life Amendment would not "create" a right; it would cause the government to acknowledge and protect an existing right.
How would the Human Life Amendment affect legal abortion?
If adopted, it would permit states to enact and enforce laws to prohibit abortion. It would also permit Congress to adopt laws that protect the preborn.
Would it affect existing pro-abortion laws?
Yes. Current state and federal laws and regulations that legalize, regulate, or fund abortion could be successfully challenged in court. Pro-abortion laws would become unenforceable.
Why is the Human Life Amendment necessary to protect babies?
As noted, the U.S. government does not acknowledge everyone's right to life. The Supreme Court's Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) decisions say that abortion, not the preborn baby, is protected by the U.S. Constitution. Thus, any state or federal law that prohibits abortion is, according to the Supreme Court, unconstitutional at this time.
How would the Human Life Amendment require judges to protect babies?
The Human Life Amendment specifically states that all human beings, from the time of fertilization, have a right to life. With its adoption, judges could no longer claim that the preborn were not included in the Constitution. (The Fourteenth Amendment defines "citizens" as "persons born or naturalized in the United States" and forbids states to "deprive any person"-citizen or not-"of life . . . without due process" but doesn't define "person.") Rather than leave justices and judges to argue over whether a preborn baby is a "person" the Human Life Amendment would spell out that the baby has the same right to live as any other human being; like any other human being, the preborn baby would be entitled to equal protection under law and could not be deprived of life without due process of law.
But isn't there an easier way to protect babies than to pass a Constitutional amendment?
No other way would provide the security of an amendment. State laws cannot protect babies because of Roe v. Wade. Federal laws protecting babies could be declared unconstitutional or, if upheld, could simply be overturned by a majority vote of a later Congress.
An amendment is more permanent, then?
Yes. While no law or Constitutional amendment can be "written in stone," so to speak, amending the federal Constitution is as close to permanent legal protection for the preborn as anyone can obtain.
"If a human life amendment is added to the Constitution, the fertilized egg could have more rights than you do." So predicts Rhonda Copelon, writing in the February, 1981, Ms. magazine. A human life amendment, she warns, "could make women slaves to the fetus and thereby to the state." Clearly, the pro-abortion forces are worried. A full-page ad sponsored by the STOP HLA Campaign of the National Organization for Women, in the Washington Post (Feb. 4, 1981), warns that:
"The HLAs sponsored by leaders of the anti-abortion movement in Congress would outlaw the IUD and some birth control pills. These methods of birth control can prevent the implantation of the fertilized egg, thus denying it the 'right to life.' Under the HLA, some forms of birth control become the equivalent of homicide. Under the HLA, if a woman should have a miscarriage or a spontaneous abortion, she could be investigated to determine whether it was accidental or intentional. She could be subject to criminal prosecution."
"To enforce this 'right to life,'" writes columnist Ellen Goodman, "aborted women and their doctors would surely be charged with murder. IUDs would, in all likelihood, also be banned. But the amendment also would require ultimately a massive hunt, a government edict to investigate 'miscarriages,' to oversee the habits of pregnant women and monitor research from genetic screening to amniocentesis. This is not fantasy. It is probability" (Chicago Sun-Times, Feb. 1, 1981, p. 5).
These suggestions are essentially fantasy, but it is important to deal with them seriously. They indicate the new thrust of the pro-abortion campaign. The pro-abortionists are trying to make the issue a referendum on "birth control" in general, which term is broad enough to include contraception as well as abortion.
As long as the issue is the killing of preborn babies, clearly presented as such, the anti-life forces know that ultimately the American people will choose life and that they, the baby killers, will lose. But the American people are still apparently favorable to contraception. And the pro-abortionists are trying to frame the issue as if the Human Life Amendment would outlaw contraception as well as abortion.
It is true, of course, that the plague of abortion is attributable in large part to the mentality of unwanting babies that is characteristic of the contraceptive society that we have become. Nevertheless, the Human Life Amendment would not in any way outlaw contraception. Abortion is the taking of existing human life while contraception is the prevention of life. All that the Human Life Amendment would do is provide that the preborn child has the same right to live as his elder brother or his grandmother. It would not affect in any way the legalization of contraceptives.
Various forms of human life amendments have been proposed. But the one which most arouses the ire of the anti-life movement is the Paramount Human Life Amendment, which provides, "The paramount right to life is vested in each human being from the moment of fertilization without regard to age, health, or condition of dependency."
This is the strongest and most effective amendment pending in Congress. But to understand what it would accomplish and why the pro-abortionists' warnings about it are exaggerated, we have to consider the basic constitutional issue presented by the abortion controversy.
Your right to live is protected by the Constitution because you are a "person." But in Roe v. Wade (410 U.S. 113) and Doe v. Bolton (410 U.S. 179), the Supreme Court ruled that the preborn child is not a "person" at any time before birth, within the meaning of the Fourteenth Amendment, which protects the right of a "person" to life and the equal protection of the laws.
The mother's privacy right to have an abortion (a right which the Court discovered in its own rulings since 1965) was held by the Court to prevail over the non-right of the non-person in her womb. For the first two trimesters of pregnancy, the Court allows the states, in effect, to impose no prohibition at all on abortion. During the third trimester, the state cannot prohibit abortion where it is sought to preserve the life or health of the mother.
The health of the mother, however, includes "psychological as well as physical well-being," and "the medical judgment may be exercised in the light of all facts-physical, emotional, psychological, familial, and the woman's age-relevant to the well-being" of the mother (Doe v. Bolton, 410 U.S. at 191-92). Mental health is such an elastic criterion that the rulings are in effect a license for elective abortion at every stage of pregnancy until birth. In practical terms, the life of the preborn child has no more constitutional protection than the life of a goldfish.
The Human Life Amendment would restore personhood to the preborn child. But the Constitution is not a code of criminal law. The implementation of the guarantee of personhood would be up to the state legislatures, just as the implementation of the Fourteenth Amendment's guarantees is for those legislatures with respect to the right to live of persons already born. The Supreme Court misinterpreted the Fourteenth Amendment in holding that the preborn child is not a "person." The basic thrust of the Human Life Amendment is merely to correct that misinterpretation to restore to the preborn child the same right to live that is enjoyed by his elder brother or his grandmother.
Against this background we should consider some of the exaggerated claims made by the pro-abortionists in an effort to scare off supporters of the Human Life Amendment:
The HLA would require the states to punish abortion as murder or as manslaughter.
Let us be clear about one thing. Abortion is murder in the moral sense because it is the directly intended taking of human life without justification. It was in this sense that Rev. Christian Bartholdy, a Danish Lutheran, observed in 1965 that permissive abortion was turning his country into "a nation of murderers" (Grisez, Abortion: The Myths, the Realities and the Arguments , 349).
But in legal terms, the crime of abortion, for historical reasons, has not been defined as murder in criminal statutes or at common law. It is up to the legislature to determine the classifications and degrees of crimes, which generally depend on extenuating circumstances and the mental state of the defendant. Under the Human Life Amendment, the state legislatures would have flexibility in determining how abortion would be punished as it has such flexibility with respect to other unjustified killings. The irreducible minimum is that the preborn child would no longer be a non-person whose killing would be unpunished by the law. But the legislature could decide how to punish it.
It would be proper, for example, for the state to emphasize the punishment of the doctor; it would be proper for prosecutors or the legislature to minimize or even forgo punishment of the mother in order to focus on the doctors.
In any event, the above objection of the pro-abortionists is a scare tactic. The vision of women undergoing abortion and then being sentenced to the electric chair is a fantasy. The reality under the HLA will be no different in this respect from the reality under pre-1973 abortion laws. The real targets of prosecution will be the doctors and others who reap financial or ideological profit from their participation in the murder of preborn babies.
If a woman has a miscarriage or a spontaneous abortion, she will be investigated to determine whether it was spontaneous or intentional. She could be subject to criminal prosecution.
Under the HLA this will be no more true than it was under pre-1973 abortion laws. The common sense of the medical and legal professions can be relied on to prevent abuse here. This objection, incidentally, raises an interesting question with respect to child abuse and infanticide. If a child accidentally falls and dies or is accidentally scalded in a tub of hot water, it is possible that the question might arise as to whether the injury or death was due to child abuse. Yet the possibility of such questions being raised, as they should be by alert medical and law enforcement personnel, does not mean that we should abolish the general child abuse and homicide laws. If the HLA were adopted and abortion were made a crime, the mother experiencing a spontaneous abortion would have no more cause to worry about prosecution than does the mother whose two-year-old infant is accidentally drowned in the backyard pool. In neither case does the possibility that the death of the preborn or the infant might be suspected to be criminally caused in some cases argue for the abolition of the statutes making the deliberate killing of such a victim a crime.
The HLA would bring invasions of privacy. The government could require monthly pregnancy tests for all women; all pregnancies or suspected pregnancies would have to be registered; once pregnancy is established, the state could require the mother to give up smoking, drinking and so on, for the protection of the child.
This parade of horribles ignores the fact that we have in our Constitution a Fourth Amendment which prohibits "unreasonable searches and seizures." The HLA would not abolish the right of privacy. All it would do is restore to the preborn child the protection of the traditional principle that lesser rights such as the right of privacy do not outweigh the right to life.
If these and other conjectures of the pro-abortionists were realistic, why were no such excesses evident under the pre-1973 abortion laws? The answer is that the good sense of legislatures, courts and the people can be counted on now as before to prevent abuse.
Incidentally, prior to 1973, a woman could be required to undergo procedures which were not dangerous to herself in order to save the life of the preborn child she was carrying. Thus, in Raleigh-Fitkin-Paul Morgan Memorial Hospital v. Anderson (42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 ), the New Jersey court required a woman to undergo a blood transfusion, despite her religious objections, in order to save the life of her preborn child.
But it is incorrect to suggest that under the HLA a pregnant woman could be required to take a drug dangerous to her own life, or undergo some procedure dangerous to her life, even to save the life of her child. She would have no right to kill her preborn child. But neither would she be required to kill herself even to save her child. This principle would be no more susceptible to abuse under the HLA than it was under the pre-1973 rulings.
Use of an lUD or a birth control pill would be a crime since they evidently interrupt a pregnancy after fertilization.
It is clear that the intrauterine device and many birth control pills are abortifacients rather than contraceptives. The HLA would permit a state legislature to control such abortifacients in the only practical way, which is through the licensing procedure. It would be impossible, however, to prosecute for abortion in such cases, since it would be impossible to prove that the pregnancy had actually occurred and had been terminated by the device or pill.
Where a device or pill has no other use than to terminate life, the legislature, pursuant to the HLA, could prohibit its manufacture and sale. Where a device or pill has alternate, non-abortive functions, its prescription by the medical profession could be subject to appropriate regulation.
This is a matter of great importance, because the abortion of the near future is going to be by pill or other do-it-yourself means. If we concentrate only on surgical abortions at later stages of pregnancy, we risk sanctioning a wholesale slaughter of persons in the earliest stages of life. There is a tendency in some parts of the pro-life movement to seek a "quick fix" by conceding the legitimacy of early abortions. This would be a fatal mistake. The fact is that the lUD and most birth control pills do kill people. Their victims are very little people but it surely is within the power of any civilized society to do whatever can be done to prevent those killings.
The HLA would outlaw contraception.
This is false. Abortion is the taking of life while contraception is the prevention of life. The HLA would not restrict contraception in any way. There is a definite connection between abortion and the contraceptive mentality of unwanting babies. But the HLA does no more than guarantee the rights of personhood once life has begun.
Eleanor Smeal, head of the National Organization for Women, said, "We need to make people aware that the proposed HLA will turn back birth control to 1900 and the amendment will be politically dead. It is a tragic waste that we have to fight Margaret Sanger's battles all over again..."
This is a revealing comment. Margaret Sanger was a strong advocate of eugenic sterilization. She called the "feebleminded" a "menace to the race" and she proposed "to apply a stern and rigid policy of sterilization and segregation to that grade of population whose progeny is already tainted, or whose inheritance is such that objectionable traits may be transmitted to offspring" (Elasah Drogin, Planned Parenthood's Margaret Sanger: Architect of Modern Society [Human Life Center, Collegeville, Minn., 1979]).
"There is only one reply," she stated, "to a request for a higher birth rate among the intelligent, and that is to ask the government to first take the burden of the insane and feebleminded from your back. Sterilization for these is the solution" (Ibid.).
Among the slogans she coined to promote her movement were "More children from the fit, less from the unfit-that is the chief aim of birth control" and "Birth control: to create a race of thoroughbreds" (Ibid.).
If the right to life is guaranteed by the HLA "irrespective of age, health, or condition of dependency," would not the state then be required to provide the basic necessities of life for people of all ages?
No. The experience under the Fourteenth Amendment is the guide here. The HLA, like the Fourteenth, is a protective amendment. It would require the states to protect life. But the fact that the life of a teenager or an adult is protected by the state does not mean that he has a right to a state subsidy. The HLA would make no change in this regard.
How can the duty to provide bodily sustenance to another be confined to pregnant women? Under the HLA, why can't the state require everyone, male and female, to provide a needed organ or other bodily material to save another person?
Here again the Fourteenth Amendment is the guide, since the HLA would merely correct the Supreme Court's erroneous interpretation which excluded the preborn child from the protection of the Fourteenth Amendment. Under the Fourteenth Amendment, the state cannot require people in general to donate an organ even to save another's life. The law here is protective. It sets a minimal standard to prevent invasion of rights. Only in very limited situations does the law impose affirmative duties. The pregnant woman has the duty merely to provide sustenance and protection to the child she is carrying. This is merely a recognition of her unique relation to the child she is carrying.
After birth the parental duty of sustenance and protection continues, though in a different form. But it is fantasy to suggest that the HLA would lead to such things as mandatory organ transplants.
The National Organization for Women claims, "Under laws defining murder, manslaughter, assault, kidnapping and myriad other crimes involving a person as victim, the fertilized egg and fetus would be included as potential victims."
The HLA restores personhood to the preborn child only with respect to his "right to life," since it was with respect to this right that the Supreme Court denied such personhood. Assault, kidnapping and other laws not involving homicide obviously would not be required to be enforced for his protection. With respect to homicide laws, the answer to question 1, above, is relevant.
Under the Human Life Amendment, wouldn't the preborn child have to be counted in the census, be considered a dependent for tax purposes, have to obtain a passport if his mother leaves the country, etc., etc.?
The answer to these and similar objections is: No. The Human Life Amendment would require only that the preborn child be treated as a person with respect to his right to life. It was with respect to that right to life that the Supreme Court denied his personhood. Inclusion in the census, passports, etc., would not be required under the HLA because those issues do not involve the deprivation of his right to life.
Under the Human Life Amendment, wouldn't the "right to life" attach to an egg fertilized in a dish by in vitro fertilizations?
Yes. There is no sense equivocating on this issue. When Louise Brown, the first "test-tube" baby, was born, the whole world acknowledged that her life had begun at the time of fertilization by the in vitro process. The common practice with in vitro fertilization is to fertilize several eggs, let them mature for a time, select the best one for use and throw the others away. The HLA would guarantee the right to live of all human beings, even the smallest. It would permit the states to regulate the process of in vitro fertilization so as to protect that right. In civilized society there can be no "throw-away" human beings.
Isn't it true the "no-exceptions" Human Life Amendment is an effort to enact into law a sectarian Catholic doctrine?
No. The "no-exceptions" position coincides with Catholic teaching. But so do the laws forbidding bank robbery. In neither case can such a law be condemned as a sectarian intrusion on public policy. The "no-exceptions" position is justified on grounds essential to the maintenance of any civilized society. And it is an insult to pro-life people who are not Catholic to suggest that the pro-life movement is a Catholic front. "As a Christian," writes Pastor Kent Kelly of Calvary Memorial Church in Southern Pines, North Carolina, "you have no business debating the abortion issue unless you are against abortion, period." The argument for an exception even to "save the wife," he concludes, "like every other argument of the abortionists, is based on a false premise to generate sentiment in favor of the murder of the unborn" (Kelly, Abortion: The American Holocaust. Calvary Press, 400 South Bennett St., Southern Pines, NC 28387; 1981, pp. 94, 96).
In fact, the official Catholic Church in this country has been put to shame by the pro-life zeal of other Christians, Mormons and Orthodox Jews. It would be a shame if some people were to allow the vestiges of a well-forgotten prejudice from the past to interfere with their total commitment to the restoration of the right to live. It is unthinkable that anyone dedicated to that cause would withhold his support merely because Catholics, acting in accord with their own convictions, are also engaged in that effort.
How should we deal with the endless objections and accusations that will be raised against HLA?
The important thing is to keep emphasizing the limited scope of the HLA, as outlined above. Pro-abortionists are trying to mislead people of good will. Our only recourse is to state the facts calmly and persistently. It is not the pro-life movement which is committing an outrage against the Constitution. The outrage was perpetrated by the Supreme Court and is being carried on by those who support the pro-death abortion rulings of the Court.
Shouldn't we try to find some middle ground that will not be subject to objections?
No. If the Ten Commandments were proposed for a vote, the same sort of tactics would be used by their opponents as are being used against the HLA, which is merely an application of the basic prohibition in the Decalogue against the murder of the innocent. There can be no compromise on this issue.
But the reassuring factor is that the pro-life movement grows and succeeds only to the extent that it refuses to compromise and to the extent that it puts its primary trust in God.
No constitutional amendment is perfect. And we should remain open to genuine improvements. But objections of the sort we have discussed herein are not raised in order to improve the amendment. They are the product of a campaign of wholesale misrepresentation. That campaign can be countered-and we can achieve success-only with the truth, hard work and prayer.
Basic questions and answers on the Human Life Amendment follow. Please turn the page.
What is the essence of the 1973 Supreme Court ruling and how has that ruling affected abortion practices?
In its 1973 abortion decisions, the Supreme Court ruled that the preborn child is not a person within the meaning of the Fourteenth Amendment and that therefore the preborn child is not entitled to the right to life protected by that amendment. In providing guidelines, the Court allows the states to impose no prohibition at all on abortions performed during the first two trimesters of the pregnancy. During the third trimester, the Court held, the states could prohibit abortions except in cases where the abortion is sought to preserve the life or health, physical or mental, of the mother.
Since no restrictions are allowed on abortion in the first two trimesters, and since "mental health" is such an elastic criterion, the net effect of the Supreme Court rulings is to require the states to allow elective abortion at every stage of pregnancy until birth.
What is the remedy for the Supreme Court decisions that mandate such elective abortions?
The ultimate remedy to the Supreme Court decisions is an amendment to the U.S. Constitution. The amendment must accomplish the following three objectives:
Every year we "legally" kill by abortion innocent human beings in numbers equivalent to the combined populations of Kansas City, Minneapolis and Miami-at least 1,300,000. Because of the horrible dimensions of this mass slaughter, there is a tendency in some areas of the pro-life movement to favor whatever will promise an immediate reduction of the killings, even if that reduction is at the price of permanently legalizing abortion on a smaller scale. Those who insist, on the contrary, that the right to life must be restored, without exceptions, may appear to be heartless and more devoted to an abstract principle than to the saving of innocent lives. In fact, the Supreme Court rulings on abortion leave no alternative but to support a no-compromise, no-exception constitutional amendment that would prohibit all abortions. Such an amendment has already been proposed in Congress and is named for its co-sponsors, the Helms-Dornan amendment. There are no situations where abortion is medically or psychiatrically justified to save the life of the mother
Why shouldn't abortions to save the life of a mother be permitted under the law?
There are no situations where abortion is medically or psychiatrically justified to save the life of the mother(see Wilson, "The Abortion Problem in the General Hospital," in Rosen, Abortion in America , and Whitehead, Respectable Killing: The New Abortion Imperative).
We must be careful, however, to distinguish cases such as the cancerous uterus and the ectopic or tubal pregnancies. If a pregnant woman has a cancerous uterus and, to save her life, it is necessary to remove the uterus, and the operation cannot be postponed until the baby is born, then the uterus may be removed even though such an operation results in the death of the preborn child. Similarly, when a fertilized ovum lodges in the fallopian tube and begins to grow there, the damaged portion of the tube, containing the developing fetus, may be removed surgically where it is clearly and imminently necessary to save the life of the mother. Such operations as these are considered moral even under Catholic teaching (see Ethical and Religious Directive for Catholic Health Facilities, National Conference of Catholic Bishops, 1971, paragraphs 10-17).
Morally, these operations are considered indirect abortions and they are justified by the principle of the double effect, since the death of the child is an unintended effect of an operation independently justified by the necessity of saving the mother's life. They do not involve the intentional killing of the preborn child for the purpose of achieving another objective, such as the preservation of the mother's health or life. Morally, therefore, such operations may be justified.
Legally, they are not considered to be abortions at all. There has never been a prosecution even attempted in this country based on the removal of such a condition, even where the mother's life was not immediately threatened. There is no need, therefore, to provide a specific exception for such cases in a constitutional amendment prohibiting abortions.
Apart from such cases as the ectopic pregnancy and the cancerous uterus, there is no medical or psychiatric justification for terminating a pregnancy. But even if there were, a constitutional amendment should not legalize abortion in such cases.
For example, if two people in the middle of the ocean are on a raft that can hold only one person, the law does not permit one to throw the other overboard even to save his own life (see Regina v. Dudley and Stephens, 14 Q.B.D. 273, 15 Cox C.C. 624, 1884; and U.S. v. Holmes, 2G Fed Cases 360 [No. 15,383] C.C.E.D., Pa., 1842). Otherwise, might would make right. In maternity cases, the duty of the doctor is to use his best efforts to save both of his patients, the mother and her child. He should not be given a license to kill intentionally either of them.
Why shouldn't abortions be permitted to preserve a mother's health or when amniocentesis shows that the child will be born with serious defects?
If an exception should not be made where the life of the mother is concerned, it follows that an exception should not be made for any lesser reason. To allow abortion to prevent injury to the mother's mental or physical health (where her life is not in danger) is to allow killing for what ultimately amounts to convenience. And to kill a preborn child because he may be born defective is to do exactly what the Nazis did to the Jews whose lives they regarded as not worth living.
But why shouldn't abortions be allowed to those women who become pregnant by rape or incest?
The woman who is raped has a right to resist her attacker. But the preborn child is an innocent non-aggressor who should not be killed because of the crime of the father. More to the point, since a woman has the right to resist the rapist, she also has the right to resist his sperm. There are non-abortive measures that can be taken, consistent with the law and even with Catholic teaching, promptly after rape, which are not intended to abort and which will prevent conception.
However, once the innocent third party to a rape, the preborn child, is conceived, he should not be killed. The duty of the state and society in all cases of "troubled" pregnancies is to mobilize resources to solve the problems constructively with personal and financial support. A license to kill is not a constructive solution.
Incest is a voluntary act on the woman's part. If it were not, it would be rape. And to kill a child because of the identity of his father is no more proper in the case of incest than it is in the case of rape. Again, the positive solution of support should be pursued, not legalized murder by abortion.
In Roe v. Wade, the basic 1973 abortion ruling, the Supreme Court held that if the personhood of the preborn child is established, the pro-abortion case "collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment." This is because the law does not permit one person to kill another innocent person even to save the life of the killer. As the Supreme Court itself noted in Roe v. Wade:
When Texas urges that a fetus is entitled to Fourteenth Amendment protection as a person, it faces a dilemma. Neither in Texas nor in any other state are all abortions prohibited. Despite broad proscription, an exception contained in Article 1196, for an abortion procured or attempted by medical advice for the purpose of saving the life of the mother, is typical. But if the fetus is a person who is not to be deprived of life without due process of law, and if the mother's condition is the sole determinant, does not the Texas exception appear to be out of line with the Amendment's command?
It seems clear from those statements of the Court that a simple restoration of "personhood" to the preborn child, without exceptions, should prevent the states from legalizing any abortions, even when they are claimed to be necessary to save the life of the mother. Such a result is consistent with the common law, under which the principle of necessity does not justify anyone taking the life of an innocent non-aggressor even to save his own life. The Paramount Amendment implicitly, but clearly, restores "personhood" to the preborn child without any exceptions. The amendment provides:
The paramount right to life is vested in each human being from the moment of fertilization, without regard to age, health or condition of dependency.
It is true that the Paramount Amendment would not prevent the state legislatures and the Supreme Court from applying, incorrectly, the law of necessity so as to permit abortion to save the life of the mother. But no constitutional amendment on any subject can be drawn so as to be immune to misconstruction. The recent history of the Fourteenth Amendment is evidence enough on that point. The object of a Human Life Amendment should be simply to restore to the preborn child the same right to live which is enjoyed by his older brother and his grandmother. Even the Supreme Court acknowledged in Roe v. Wade that such recognition of personhood would prevent the legalization of abortions even where claimed to be necessary to save the life of the mother.
Wouldn't it be better to have a Human Life Amendment with limited exceptions so as not to invite courts and legislatures to write their own more far-reaching exceptions?
It has been argued by some that to write an amendment without exceptions is to invite the states and the Supreme Court to write their own exceptions which could be practically unlimited. But this contention is unsound. It argues that if you write in just one little exception, the states and the Court will not be able to add others. This is wholly unrealistic.
To argue that writing one exception into the amendment will prevent the Supreme Court from adding others is to rely on the Court's adhering to the canon of legislative drafting expressio unius est exclusio alterius-which means that the inclusion of one excludes others not mentioned. This canon of interpretation, however, is merely presumptive and has been disregarded by courts on numerous occasions.
Curiously, those who favor exceptions on this theory rest their case on the expectation that the Court will strictly adhere to this merely presumptive guide to construction while they wholly disregard the more basic concepts of personhood and necessity which were even acknowledged by the Court in Roe v. Wade. Advocates of an exception are sure the Court will disregard that very basic concept under which a restoration of personhood would prevent all abortions while they assume that if one exception is written in, the Court will feel itself bound by the merely presumptive rule of expressio unius and will go no further.
In fact, it is impossible to draft any exception clause which will not open the door to psychiatric abortions and, in ultimate practice, to abortions on request. Even the most limited exception would be broadly interpreted. For example, on the televised MacNeil/Lehrer Report, April 22, 1980, Dr. Michael Burnhill of the National Abortion Federation said that even an exception limited to abortions that would endanger the life of the mother would permit him to perform whatever abortions he thought were "medically necessary," which would include abortions to preserve the mother's "health," which he defines as "a condition in which one can actively participate in one's total life, that you are not a cripple or an invalid."
On a practical level, the recent experience with the Hyde Amendment indicates that when pro-lifers concede one exception, they disarm themselves and become incapable of resisting the arguments of those who would extend the exceptions to cover such cases as rape and incest. The preferable alternative is to restore personhood to the preborn child with respect to his right to live without exceptions.
But isn't it good tactics to include exceptions in an amendment to make sure it will gain a broad support?
No. Those in the pro-life movement who traffic with exception clauses are trying to gain support from those who favor "only a few" abortions. But such people are worthless as allies since they are basically opposed to an authentic pro-life position and since they are practically incapable of resisting the expansion of their exceptions.
On the contrary, the pro-life movement is only as strong as its refusal to compromise. In fact, there are no cases where a legal abortion is necessary even to save the life of the mother. The removal of a cancerous womb or an ectopic pregnancy is not an abortion in legal terms and therefore no exception clause is necessary to authorize such operations, which are permitted even under Catholic teaching.
Agreeing on amendment language is a problem mainly for those who are trying to carry water on both shoulders. If you want leeway for some abortions, or if you favor the intrauterine device or morning-after pill, which are early abortifacients, you will have trouble with the language, and you will end up with an "anything goes" amendment.
Those who propose exceptions to the right to live present themselves as pragmatic realists. But in fact the only practical solution here is one that adheres to principle. If an amendment with exceptions to the right to live were ever passed by Congress and sent to the states for ratification, it would have to be actively opposed by all who regard the right of innocent life as non-negotiable.
Such an amendment would never be ratified over the opposition of the strongest elements in the pro-life cause. To write into our Constitution a license for the intentional destruction of innocent life would be to adopt the jurisprudence that underlay the Nazi extermination of the Jews. This we can never allow.
What is really at stake in this matter of making exceptions to the right to live?
The real issue is whether life is a gift of God or of the State. Innocent life is non-negotiable precisely because it comes from God. The governing principles were stated by Pope John Paul II in his homily at the Capitol Mall on October 7, 1979:
I do not hesitate to proclaim before you and before the world that all human life-from the moment of conception and through all subsequent stages-is sacred, because human life is created in the image and likeness of God. Nothing surpasses the greatness or dignity of a human person... Let me repeat what I told the people during my recent pilgrimage to my homeland: "If a person's right to life is violated at the moment in which he is first conceived in his mother's womb, an indirect blow is struck also at the whole of the moral order, which serves to ensure the inviolable goods of man. Among these goods, life occupies the first place. The Church defends the right to life, not only in regard to the majesty of the Creator, who is the First Giver of this life, but also in respect of the essential good of the human person."
On a more specific level, the Declaration on Procured Abortion, issued with the approval of Pope Paul VI in 1974, said, "Man can never obey a law which is in itself immoral, and such is the case of a law whichlicityadmit in principle the liceity of abortion. Nor can he take part in a propaganda campaign in favor of such a law, or vote for it."
It is long past time for the pro-life movement to stop apologizing for itself and to affirm without compromise that life is a gift of God and not of the State. Our duty is to protect the right to live of each and every child of God.
From our beginning as a nation we have held that all men are created equal, and are endowed with the right to life, liberty, and the pursuit of happiness. But our understanding of who "men" are has developed dramatically over time. Such developments do not occur out of thin air. They come from persuasion. And persuasion typically begins with the staunch moral commitment of a tiny minority. They win over the majority in time, not, primarily, by their rhetorical brilliance or their strategic acumen, but by their patient and uncompromising witness to the truth. It is truth that commends itself eventually to the conscience of society as whole. At least, this is what we hope and pray for.
Thus, while discussion of legal strategies and practical pros and cons in the pro-life movement is all well and good, none of it compares in importance to sustained reflection and debate about the absolutely central questions of the moral realities at stake in abortion. If we lose interest in those, we are lost indeed.
Kathleen van Schaijik
Ann Arbor, Michigan
Still one must ask: Can things really get any worse? In Roe, the Court concluded that "the word 'person' as used in the Fourteenth Amendment does not include the unborn"-a conclusion that Casey left intact. Thus, one is left to wonder how the consequences could be worse should NFFL's strategy fail.
Justice Antonin Scalia has gained admirers by arguing that the Constitution is "silent" on abortion, so that the states are free to protect the practice or prohibit it as they see fit. If unborn human beings are constitutional persons, they are entitled to the same protections afforded others. Presumably these protections would prevent women from killing their children in utero.
Although the Constitution does not expressly state whether "person" includes the unborn, it is similarly silent with respect to any number of constitutional terms. The First Amendment does not define "religion," yet the Court does not let states do so, nor does the Court shrink from giving content to the term in its decisions. Likewise with "speech," "probable cause," "searches and seizures," "due process," and "equal protection"-undefined terms all. Instead, since Chief Justice John Marshall's day, the Court has insisted that it is "the province and duty of the judicial department to say what the law is." Thus, it is incumbent on the Court to give meaning to the constitutional term "person."
Mr. Linton is also right that the failure to recognize the unborn's personhood reflects a defect in judicial will, not intellect.
It would be incongruous for courts to admit that an unborn child is a human being and to simultaneously deny him or her the protections of legal personhood. With the notable exception of slavery and a few wholly discredited decisions such as Buck v. Bell, the categories of "human being" and "person" under the Constitution have been coextensive. Thus, to exclude some human beings from the protections of personhood cannot fit within our jurisprudence.
Even if the NFFL is unsuccessful, forcing judges to employ reason and not simply will and forcing them to make arguments for such an untenable position might serve a greater political purpose. It might serve to rouse the public to see such decisions, and all the Court's abortion decisions, for what they truly are, namely (in Justice Byron White's words), "an exercise of raw judicial power." Such recognition might lead to the wider public conversation that is needed and which Mr. Linton's article implicitly recognizes and proposes.
A judicial declaration would not change the hearts and minds of Roe's proponents. The culture of "choice," as a culture of death, would still rule the day.
Society needs to engage in an honest conversation about the reality of abortion, a conversation that was largely muted by the Court's decision in Roe. Politics and political discourse have a vital role to play in this process.
One would hope that such conversation would take place if the Court were to overturn Roe and place the matter in the hands of the states. Obviously, such a conversation would have to precede a constitutional amendment. In either case, the real question is, How can the issue be brought to that moment? The NFFL strategy, even if unlikely to succeed in court, may help advance the cause of the unborn in other ways.
John M. Breen
Loyola University School of Law
It is precisely because of those realities that I have been engaged in the pro-life movement for the last fourteen years. And "the moral realities" should inform the public debate over abortion, state and federal legislation (for example, fetal homicide statutes and statutes extending wrongful death actions to all unborn children), and, where appropriate, litigation.
But in my judgment, constitutional recognition of the rights of the unborn child will come about, if at all, only through an amendment to the Constitution, not a court decision. The political branches of government are much more susceptible to this type of persuasion than the judicial branch, particularly the Supreme Court, which continues to pretend that it laid the abortion issue to rest in its decision in Casey v. Planned Parenthood eleven years ago .Is it morally prudent to pursue a litigation strategy that is likely to result only in more court decisions holding, as the Third Circuit already has in the Whitman case, that being human is not a sufficient basis for being considered a "person"?
In Roe, the Court, per Justice Harry Blackmun, professed an inability to state when human life begins. Such a decision would tend to reinforce the repellent doctrine preached by some academics and others that having the attributes of humanity (i.e., being genetically of the species Homo sapiens, being alive and developing) provides no claim to the protection of the law.
Second, after a short critique of Justice Antonin Scalia's view that the Constitution's "silence" on abortion disqualifies the Supreme Court from considering whether the unborn child is a constitutional person-a view which I must emphasize is shared by Chief Justice William Rehnquist and Justice Clarence Thomas (and in which the late Justice Byron White concurred)-Prof. Breen states that "it is incumbent on the Court to give meaning to the constitutional term 'person.'" The problem is that the Court already has given meaning to the term, in Roe, and that meaning does not include the unborn child. I do not disagree with Prof. Breen that unborn children should be considered constitutional persons-my disagreement is how that recognition should be brought about.
Third, Prof. Breen posits that "it would be incongruous for courts to admit that an unborn child is a human being and to simultaneously deny him or her the protections of legal personhood." Incongruous, perhaps, but not inconceivable. Indeed, that is precisely what the Third Circuit did in the Whitman case, decided only five years ago, and what the New York Court of Appeals did more than thirty years ago in the Byrn case, in rejecting a "personhood" challenge to the pre-Roe, New York abortion-on-demand statute enacted in 1970.
Prof. Breen himself acknowledges that society's need "to engage in an honest conversation about the reality of abortion . . . was largely muted by the Court's decision in Roe." And that was thirty years ago, before abortion became embedded in the culture. More recently, we saw the Supreme Court create a constitutional right to kill a child in the course of its birth in a decision (Stenberg v. Carhart) that betrayed no ignorance "about the reality of abortion." Where was the public outrage?
The Court picks and chooses its cases and can easily avoid addressing issues that, in the Court's opinion, could embarrass the Court or undermine its credibility. Cases attempting to overturn Roe on the basis of the personhood of the unborn child, the rights of the father to prevent an abortion, or the rights of the mother to have a relationship with her child (all theories that have been pursued at one time or another by the NFFL and others) have never been accepted for review by the Supreme Court and, in my opinion, never will be. Roe will be overruled when five Justices on the Court agree that the Constitution does not confer upon women a right to have an abortion. Then, and only then, will Roe be discarded.